Can the same person sit on both a county planning commission and a county board of education in California?

Plain-English summary

San Benito County Counsel asked the AG whether one person can lawfully serve simultaneously on the County Planning Commission and the County Board of Education. The AG said no.

The Planning Commission, set up under California's Planning and Zoning Law, makes recommendations on the county general plan, approves or denies conditional use permits and variances, hears permit-revocation proposals, decides appeals from the Planning Director, and adopts environmental determinations under CEQA. The Board of Education is the policy-making body of the County Office of Education, oversees the County Superintendent of Schools, sets rules for the office's administration, and (alone or with the superintendent) can establish facilities like community schools and emergency schools.

These two bodies inevitably collide. When the Board of Education builds or expands a school facility, the Planning Commission may have to issue a permit or run a CEQA analysis on the Board's project. When the County Superintendent of Schools makes land-use decisions, both bodies can have a review or approval role. The Planning Commission must include educational facilities in the general plan; the Board of Education can issue county zoning exemptions for community schools. The result is a structural conflict of duties that Government Code section 1099 forbids.

The AG also noted that the prohibition operates automatically. Section 1099(b) says a public officer who accepts an incompatible second office "shall be deemed to have forfeited the first office upon acceding to the second." Recusal does not cure the conflict. The same conclusion was reached in 1996 under the pre-codification common-law doctrine; the AG simply reaffirmed it under the current statute.

What this means for you

County planning commissioners

The opinion concludes that, in San Benito County, simultaneous service on the County Planning Commission and the County Board of Education is barred under Government Code section 1099. The AG identified the structural overlap as the basis: the general plan must address educational facilities (Gov. Code § 65302), both bodies may review the County Superintendent's land-use decisions (Gov. Code §§ 65401, 65402), and the Board's facility decisions may require Planning Commission permits and CEQA review.

County board of education members

The opinion concludes that the same rule applies in the other direction. The AG cited Government Code section 1099(b) for the rule that "[w]hen two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second." The opinion also notes that recusal does not cure the conflict.

County counsel

The opinion applies the three-part test in section 1099(a): supervisory powers between offices, possibility of significant clash of duties or loyalties, or public-policy considerations against dual service. The AG concluded the second prong was satisfied based on the planning-and-education functional overlap described above.

Candidates and appointees considering a second local board

The opinion treats section 1099's forfeiture rule as operating by operation of law upon acceding to the second office. The opinion's analysis is specific to the planning-and-education configuration in San Benito County.

School district administrators

The opinion holds that the planning and education bodies in this configuration share enough jurisdiction over facility siting and superintendent action that the offices are incompatible under section 1099. The opinion concludes that recusal does not cure this incompatibility.

Journalists and open-government advocates

The opinion is the AG's affirmation, under the post-2005 statutory framework, of the same conclusion previously reached under the pre-codification common-law incompatibility doctrine.

Background and statutory framework

Government Code section 1099 was enacted in 2005 to codify the common-law incompatible-offices doctrine. Subdivision (a) prohibits a public officer from simultaneously holding two public offices that are incompatible under any of three tests: (1) one office may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other; (2) there is a possibility of a significant clash of duties or loyalties between the offices; or (3) public policy considerations make it improper for one person to hold both. Subdivision (b) makes the prohibition self-executing: an officer who accepts an incompatible second office automatically forfeits the first, enforceable through quo warranto under Code of Civil Procedure section 803.

The opinion confirmed both positions are "public offices," not employments. The common-law test for a public office is satisfied by (1) creation by Constitution or statute, (2) continuing and permanent tenure, and (3) performance of a public function exercising sovereign powers. Both planning commissioner and county board of education member meet all three.

The Planning Commission's authority comes from the Planning and Zoning Law (Government Code section 65000 et seq.) and local ordinances. Each county must create a planning agency to perform designated planning and land-use functions. The Commission prepares, reviews, and revises the county general plan, and implements it through zoning and subdivision ordinances. It approves or denies conditional use permits and variances, hears appeals from the Planning Director, and adopts CEQA environmental determinations.

The County Board of Education's authority comes from California Constitution article IX, section 7, and Education Code section 1000 et seq. Boards oversee the County Superintendent of Schools, adopt rules governing administration, and can establish community schools and emergency schools (Education Code sections 1980, 1986). Education Code section 1984 deems county boards to be school districts for purposes of operating community schools, and Government Code section 53094(b) allows school districts to issue county zoning exemptions for proposed school uses.

The structural overlap is what makes the offices incompatible. The general plan must address educational facilities (Government Code section 65302). Both bodies may review the County Superintendent's land-use decisions (Government Code sections 65401, 65402). And the Board's facility decisions may flow through Planning Commission permits and CEQA review.

Common questions

What if a board of education member just recuses from any vote that touches the Planning Commission's jurisdiction, and vice versa? Doesn't work. The AG and California courts have repeatedly held that recusal does not cure section 1099 incompatibility. The doctrine "was designed to avoid the necessity for that choice." Holding both offices is itself the violation.

The two bodies are in different counties. Does that change the answer? The opinion is San Benito County–specific because it analyzes that county's geography, ordinances, and structures. But the structural overlap (planning commissions reviewing school-facility siting, boards of education making school-siting decisions) is generic to county government in California. A different-county configuration would still require the same analysis. There may be cases where the two bodies' jurisdictions don't overlap meaningfully, but those are unusual.

What if the planning commission member's land-use jurisdiction excludes school sites? Even then, the broader planning function (general plan, CEQA, zoning) intersects with school-facility siting and superintendent decisions. The AG's analysis doesn't depend on a single touchpoint; it relies on the multiple structural overlaps in the regular operation of the statutory plan.

Can the Legislature authorize this dual service?
Section 1099(a) says simultaneous holding is allowed where "compelled or expressly authorized by law." There's no current authorization for planning commissioner and board of education member dual service. The Legislature could enact one, but absent a statute or clear implication, the prohibition stands.

Does this affect dual service on a city planning commission and a county board of education? Different geographic jurisdiction reduces some conflicts, but the analysis still applies. Run the section 1099 tests against the actual jurisdictional overlap and statutory authorities of the two bodies in question.

Who enforces this?
Quo warranto under Code of Civil Procedure section 803, with the Attorney General's leave. A private party (relator) applies, the AG decides whether to grant leave, and if granted, the suit proceeds in superior court.

Citations

• Government Code section 1099 (incompatible offices)
• Government Code section 65000 et seq. (Planning and Zoning Law)
• Government Code section 65100 (planning agency)
• Government Code section 65103 (planning commission duties)
• Government Code section 65302 (general plan elements)
• Government Code sections 65401, 65402 (review of agency public works projects)
• Government Code section 53094 (school district zoning exemptions)
• Education Code section 1000 et seq. (county boards of education)
• Education Code sections 1980, 1986 (community and emergency schools)
• Education Code section 1984 (county boards as school districts)
• California Constitution article IX, section 7 (county boards of education)
• Code of Civil Procedure section 803 (quo warranto enforcement)
• People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636 (incompatible offices doctrine)
• 79 Ops.Cal.Atty.Gen. 155 (1996) (prior conclusion under common law)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/23-1101.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
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OPINION
of
ROB BONTA
Attorney General
HEATHER THOMAS
Deputy Attorney General

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No. 23-1101
May 1, 2024

The HONORABLE DAVID PRENTICE, County Counsel for the County of San Benito, has requested an opinion on a question relating to the incompatibility of two public offices held by the same person. QUESTION PRESENTED AND CONCLUSION May the same individual lawfully serve as a member of both the San Benito County Planning Commission and San Benito County Board of Education? No. Under Government Code section 1099, which prohibits the same individual from holding incompatible public offices, the same individual may not lawfully serve as a member of both the San Benito County Planning Commission and the San Benito County Board of Education.

BACKGROUND
Under California's Planning and Zoning Law, each county must create a planning agency to carry out designated planning and land use functions. "Planning agency" "is a generic term that applies to whichever body performs the designated planning functions." The planning agency in San Benito County includes the Planning Commission, which makes recommendations "to the Board of Supervisors regarding any proposed master or general plan for the physical development of the county," among other duties. The general plan is "a comprehensive, long-term . . . plan for the physical development of the county" that designates uses of land in the county for various purposes, including for education, public buildings, and grounds. The Planning Commission prepares, reviews, and revises the general plan, and implements it through the administration of specific plans and zoning and subdivision ordinances. The Planning Commission also reviews public works projects of other local agencies for consistency with the general plan, and it consults with and advises public officials about the general plan's implementation. In addition to its duties regarding the general plan, the Planning Commission approves, modifies, or denies conditional use permits and variances; hears and decides proposals to revoke permits; hears and decides appeals of decisions of the Planning Director; and considers and adopts environmental determinations on any approvals that are subject to environmental review under the California Environmental Quality Act (CEQA).

The San Benito County Office of Education oversees "the financial, educational, credential monitoring, and operational success of 11 independently-governed public school districts in the county, who in turn educate more than 11,000 students in 22 schools." The Office of Education includes both the Board of Education and the County Superintendent of Schools. The Board of Education is the "policy-making body" of the office, and its duties include certain oversight functions over the County Superintendent, such as adopting the rules that govern the administration of the office. The San Benito County superintendent of schools "is an elected official who administers the operation of the County Office of Education as an intermediate service unit for all elementary and secondary school districts" within the county. A county board of education, or a county superintendent with the approval of the county board of education, may establish and maintain direct educational services such as community schools and emergency schools.

Our requestor, the San Benito County Counsel, has asked us to opine whether the two county offices described above are incompatible public offices, such that the same individual may not lawfully hold both under Government Code section 1099. The request was accompanied by a memorandum that concluded the offices were incompatible. The memorandum cited numerous potentially conflicting planning commission duties concerning the approval, investigation, review or evaluation of school sites or real property for school purposes. We did not receive any further comment.

In a 1996 opinion published before the Legislature codified the prohibition against holding incompatible public offices, we concluded, albeit for a different county, that the offices of county planning commission and county board of education were incompatible under the pre-existing common law doctrine regarding incompatible offices. For the reasons that follow, we reaffirm that earlier conclusion.

ANALYSIS
Government Code Section 1099
For many years, the doctrine of incompatible offices was developed and analyzed under the common law. In 2005, the Legislature codified the common law rule by enacting Government Code section 1099. Subdivision (a) of that section states:

(a) A public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible. Offices are incompatible when any of the following circumstances are present, unless simultaneous holding of the particular offices is compelled or expressly authorized by law: (1) Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body. (2) Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices. (3) Public policy considerations make it improper for one person to hold both offices.

In an uncodified section of the bill that enacted Government Code section 1099, the Legislature declared that the statute was not intended to expand or contract the common law prohibition against holding incompatible public offices, and that interpretation of the statute "shall be guided by judicial and administrative precedent concerning incompatible public offices developed under the common law." We thus look both to Government Code section 1099 and to precedent established under the common law in conducting our analysis.

Public Offices
We first observe that the prohibition against holding incompatible offices applies only to "public offices," and not to positions of employment. Under Government Code section 1099(a), "public office" expressly includes membership on a governmental board, commission, or other body, which would include the two positions at issue here.

Section 1099(a)'s inclusion of such positions in its definition of "public officer" squares with our previous determinations that the positions of county planning commission member and county board of education member meet the common-law standard for determining whether a given governmental position is a public office. That standard characterizes a public office as "a position in government (1) which is created or authorized by the Constitution or some law; (2) the tenure of which is continuing and permanent, not occasional or temporary; (3) in which the incumbent performs a public function for the public benefit and exercises some of the sovereign powers of the state." The authority to make policy or to exercise independent judgment and discretion is also the hallmark of an officer, as opposed to an employee.

A county planning commissioner is a governmental position created by statute. Each member of the San Benito County Planning Commission serves a continuing and permanent tenure. As noted above, planning commissioners perform a public function and exercise some sovereign powers by approving, modifying, or denying conditional use permits and variances; hearing and deciding proposals to revoke permits; hearing and deciding appeals of decisions of the Planning Director; and considering and adopting environmental determinations on any approvals that are subject to environmental review under CEQA.

Similarly, county boards of education are established by the California Constitution and by statute. The San Benito County Board of Education consists of five members elected to four-year terms apiece, serving terms of a permanent and continuing nature. And a county board of education performs public functions and exercises sovereign powers by engaging in oversight duties over the office of the county superintendent; establishing rules under which school districts may purchase school supplies and equipment, as specified; and, when operating community or emergency schools, directly educating students.

Having established that both positions are public offices, we now turn to whether they are incompatible within the meaning of Government Code section 1099, such that the same person may not lawfully hold both at once.

Incompatibility
Under section 1099 and established precedent, a person may not simultaneously hold two public offices if either one exercises a supervisory, auditing, or removal power over the other; if there is a potential for a significant clash of duties or loyalties between the offices; or if the dual office holding would be improper for reasons of public policy. It is well established that a "past or present conflict in the performance of the duties of either office is not required for a finding of incompatibility; rather, it is sufficient that a conflict may occur 'in the regular operation of the statutory plan.'" Nor is it necessary that a potential clash of duties exists in all or in the greater part of the official functions; it is enough when the holder of the two offices cannot in every instance discharge the duties of each with undivided loyalties. Thus, only "one potential significant clash of duties or loyalties is necessary to make offices incompatible." Abstention does not cure the incompatibility or obviate the effects of the prohibition.

While the Legislature may abrogate the rule against holding incompatible public offices for any offices that it chooses, no express or implied abrogation exists with respect to the offices at issue here. We must therefore examine the functions and duties of these offices to see whether they are legally incompatible.

While neither public office has auditing or supervisory powers over the other, we do perceive a number of ways these public offices present possible significant clashes of duties and loyalties. First, there may be occasions where an action of the county board of education comes under review by the county planning commission. As noted above, the San Benito County Planning Commission approves, modifies, or denies conditional use permits and variances, and it considers and adopts environmental determinations on any approvals that are subject to CEQA. The San Benito County Board of Education, either alone or in conjunction with the county superintendent, may establish a school facility such as a county community school or a county emergency school. If the board of education chooses to develop or construct such a school facility on a site that requires the planning commission to issue a permit or consider and adopt environmental determinations under CEQA, this would result in an action by one office that requires review by a different office, an action that would result in divided loyalties for a dual office holder.

Second, these governmental bodies participate in land-use decisions in the same county, thereby exercising jurisdiction over the same geographic area. As we noted in 1996, a county planning commission and a county board of education "both have an interest in the location of educational facilities." This is problematic because the planning commission must include educational facilities in its development of the general plan, which itself is implemented through zoning and subdivision ordinances. On the other hand, because county boards of education are deemed school districts for purposes of the maintenance and operation of community schools, and because school districts can issue zoning exemptions, as specified, the county board of education may issue a county zoning exemption when establishing and maintaining community schools. The planning commission may have different priorities from the county board of education with regard to the location of educational facilities, thus resulting in divided loyalties for a person holding public office with both bodies.

Last, both governmental bodies review the actions of the same third party: the county superintendent of schools. The county superintendent may establish certain facilities, such as emergency schools, new or expanded teen pregnancy and parenting programs, or facilities for maintaining and servicing audio-visual services on behalf of school or community college districts, but it must obtain the county board of education's approval to do so. As we have previously observed, "to the extent that land use decisions regarding the placement of school facilities may be made by the county superintendent of schools, the county board of education does have a supervisory role regarding the superintendent's activities." At the same time, in one example of its power, the county planning commission would review decisions a county superintendent might make regarding major public works or real property transactions, for conformity with the general plan, as specified. Further, the county planning commission has powers to approve certain permits, and hear and decide appeals from decisions of the Planning Director. A dual office holder on the county board of education and county planning commission would need to review such land use decisions from the points of view of each body. We conclude that these circumstances all present at least the potential for a significant clash of duties within the meaning of Government Code section 1099.

The preceding is not an exhaustive list, but it does illustrate that holding both offices at once would present numerous potential clashes of duties and loyalties. As noted above, only "one potential significant clash of duties or loyalties is necessary to make offices incompatible." Further, as a matter of public policy, "when the duties of two offices are repugnant or overlap so that their exercise may require contradictory or inconsistent action, to the detriment of the public interest, their discharge by one person is incompatible with that interest."

We conclude that under the prohibition against holding incompatible offices set forth in Government Code section 1099, the same person may not lawfully serve as a member of both the San Benito County Board of Education and the San Benito County Planning Commission.